Mick Wallace (Wexford, Independent) | Oireachtas source

This Bill is both long overdue and welcome, but it requires to have several vital amendments taken on board before it is fit for purpose. The Tánaiste and Minister for Social Protection, Deputy Joan Burton, claims the Bill compares very favourably with equivalent legislation in many other countries in Europe. The problem, however, is that the majority of these countries have very poor legislation in this area, with two exceptions. In June last year the Danish Parliament passed a Bill allowing transgender people to obtain official documents reflecting their gender identity without needing to be diagnosed with a mental disorder or undergo surgeries resulting in irreversible sterilisation. Malta and Argentina have similar legislation in place.

Procedures to obtain legal gender recognition violate fundamental rights in Finland, France, Norway, Belgium and Germany, while we in Ireland, until this long overdue legislation comes into effect, had no procedure. Just as the Government failed to introduce international best practice in the legislation it recently enacted concerning the Garda Síochána Ombudsman Commission, which was a huge disappointment, it is refusing to take the opportunity to do what is best in this instance. Instead, we are willingly joining the ranks of those states which are content to violate international human rights law by interfering with the privacy and self-determination of their citizens.

The provision in section 9 that introduces an age restriction of 18 years for those who can make an application for a certificate infringes the rights of transgender people. The Ombudsman for Children has criticised this condition, highlighting that it will fail to improve the position of transgender children and adolescents, many of whom are already experiencing isolation and discrimination. The ombudsman recommends that parents be allowed to apply for a gender recognition certificate on behalf of children aged under 16 years, while those aged over 16 should be allowed to apply in their own right. Article 12 of the UN Convention on the Rights of the Child which Ireland has ratified provides that: "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child". If section 9 is not amended to allow a more progressive approach, Ireland will continue to be in violation of human rights law.

For some bizarre reason, the legislation insists applicants cannot be married or in a civil partnership. The logic behind this condition is difficult to fathom. Presumably, someone in a mixed-sex marriage would, post-registration, technically be in violation of our draconian and possibly soon to be extinct ban on same-sex marriage. This condition cannot stand.

The Bill also insists applicants must have a settled and solemn intention of living in the preferred gender for the rest of their lives. In a striking reversal of the proposed spirit of the legislation, this provision will legally tie people to their newly chosen identity. Ironically, this creates a situation for the newly registered where their right to self-determination, as outlined in Article 1 of the International Covenant on Civil and Political Rights, which we ratified in December 1989, is just as violated as it was before the Bill was proposed. This beggars belief.

Another flawed provision from a human rights perspective is the requirement that the applicant acquire a statement from a medical practitioner confirming that he or she has transitioned or is transitioning to his or her preferred gender and that the medical practitioner is satisfied the applicant fully understands the consequences of the decision to live permanently in his or her preferred gender. This is in the same vein as the one change per life provision. Furthermore, it implies that the State considers the people concerned to be suffering from some type of psychological abnormality and that gender is a matter solely determined by the biological.

If the Bill is to properly respect the rights of Irish citizens to self-determination, it must follow best practice and embrace the Danish position, which ensures transgender people can obtain legal recognition of their gender through a quick, accessible and transparent procedure in accordance with their own sense of their gender identity. The Bill is a welcome step forward, but it is not up to the task of allowing transgender people to lead lives free from interference. It fails utterly to address the rights of young people, shows a certain level of disrespect in its medicalisation of transgender people and, through the lock-in conditions, undermines the central professed spirit of the legislation. We can surely do better than this.

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